Discussion: Avoiding lawsuits

Suppose I organize or set courses for an event in the US. What can I do to avoid possible lawsuits in case something goes wrong?

(This question was provoked by thinking about a street orienteering event organized in Tucson, but it is a broader question. I'd love to get general information - for example, has anyone organizing an orienteering / AR / trail running / ... event ever been sued, and were they found liable? I'd also love to get practical advice - for example, should I be avoiding putting controls in rocky areas in case someone breaks their ankle and sues? Should we be avoiding road crossings in sprint events in case a competitor gets hit by a car?)

I'm pretty sure that on most event entry sheets it says that particpating in this competion is at your own risk, but im not sure if that means you cant be sued.

As with all legal matters, the answer depends on where you are so American experience isn't terribly useful for Australia (or vice versa).

In most Australian states it has become very difficult in recent years to sue an event volunteer for negligence (which is part of the reason why Orienteering Australia's public liability insurance premium has dropped quite significantly in the last couple of years). New Zealand has a different system again where there is no right to sue for negligence after an accident but there is a no-fault accident compensation scheme (which, for example, covered virtually all my medical costs in NZ after I broke my arm in a sprint race there in 2005); on the other hand, individuals guilty of gross negligence are potentially subject to criminal sanctions to a greater extent than is the case in Australia.

As far as an organising entity (as opposed to an individual) being sued, there is certainly at least one reasonably high-profile case - the one involving my sister's misadventure at the Park World Tour in Austria in 2000. I'm not familiar with the finer details of the legal wrangling (and wouldn't discuss them publicly even if I was), but this case dragged out over a number of years and was eventually dropped without ever going to trial because of the accumulation of legal costs.

In Australia we have our clubs "incorporated" and while I'm not totally sure what that means, I'm led to believe that the club officials can't be sued, only the club and it's assets.

I'm sure though if somebody wanted to sue us there'd be a way.

It is worrying and you might have noticed my concerns aired in the shopping centre orienteering thread. I might be seen to be negative but as a club president my arse might be one of those exposed!!!

EDIT: Just noticed Blair contribution and while it does seem the legal climate might be changing I'm still cautious. I'd like to be able to afford more than baked beans in my retirement.

I would try this on USOFclubnet for responses from those more familiar with our insurance policy and waiver requirements.

But, for fun, from the SportsLawBlog, discussing marathons (and in particular the 2007 Chicago marathon):
As far as liability is concerned, most litigation is precluded by tort and contract law limitations. Assumption of risk is a venerable tort concept that creates a defense to negligence cases because the participant, by voluntarily entering the event, assumes all reasonable risks of injury which in a marathon include many factors, such as physical difficulty, running surface and the weather. Assumptions of risk can also be created under contract, through a waiver agreement or an agreement to participate. It is a rule of thumb that any athletic event organizer who markets a competition open to the public includes such agreements, which tend to broadly disclaim liability to the organizers, sponsors and municipalities (or facility owners) for negligence. Most states do not recognize a waiver of all liability (meaning for intentional or reckless acts), but uphold assumption of risk clauses against negligence claims.

Good discussions of the doctrine of assumed risk by lawyers here and here(pdf). Also try the combination "assumed risk" and "sports" on google.

The question is what is covered by 'all reasonable risks of injury.' Is it reckless to put a control in stony ground, or have a road crossing on a road open to traffic, or ... ?

In the US, you cannot waive your right to due process. Ever. No matter what you sign. However, the waiver can be used as evidence in a lawsuit that you went into it accepting some risk. It would be very unusual for a lawsuit to be dismissed on the grounds of a waiver, but the fact that the waiver exists does reduce the chance of an extrodinary settlement.

Also, while incorporation does shelter officers from liabilities to the club, it does nothing to protect them from a personal suit. That is, if the club get's sued for $10M and insurance only covers $3M, the officers are not on the hook for the remaining $7M. However, if the plaintiff sues the officer (or anybody else) directly, that individual is responsible for any settlement. Individuals are rarely listed as defendents because they generally don't have deep pockets and juries tend to be much more sympathetic to an individual defendent. However, if you're concerned about it, adding a personal liability rider to you homeowner's insurance is usually pretty cheap.

I'm not sure even a lawyer could answer these questions definitively without them proceeding through the court system. Two recent incidents where runners were hit by cars during races appear to have focused on the liability of the driver, not the race organization.

No, but a lawyer could tell you whether to worry and what to worry about. So could experience, which is why I'm asking. Obviously you're right, though.

Lawyers feed off risk.

But to contribute more positively to this discussion, do not use the word "safe" in your risk assessments. We all know there is no such thing, but it helps focus the mindset for a race director (or club). The goal is to clearly state the risks and put part of the onus on the competitor to assume a fair share of it (risk that is).

Fair warning, I'm a bit cynical on the topic...

Beyond 'you might get hurt, you might get killed', how do you enumerate all the risks? And once you start enumerating, it wouldn't surprise me if you haven't opened yourself to a 'you didn't tell me about that risk' lawsuit.

I've yet to run into a questionable situation orienteering but had a close call with an ice storm as a meet director. Fortunately the park was closed so the event had to be postponed. I was more than a little worried about liabilty exposure if a tree fell on a participant.

On the questionable side, I participated in an adventure race where a control was hung on a narrow exposed rock ledge with a 75' drop on 3 sides. I didn't punch it.

Did another race that started in the middle of a major thunder storm. I ran into the storm with the other 150 lunatics. Among the most memorable events of my life.

I would not envy the legal position of the RD for either situation had someone been injured by falling off the cliff or been struck by lightning.

Generally, meet and race directors make pretty good decisions about routes, control placements, weather conditions, etc. But even when something is questionable, my perspective is that as a participant I make the final decision where to draw the line WRT risk.

Even if you do everything just right, I suspect the only protection against a lawsuit is a good insurance policy. There are just too many examples of people suing for stupid reasons or behaviour. (e.g. your coffee was too hot, your hamburger made me fat, etc.)